WOODSTOCK – A McHenry County judge dealt a blow to defense lawyers after he declined to decide whether a Crystal Lake man facing a domestic battery charge should be released after posting bond, despite an immigration hold.
Niceforo Macedo-Hernandez, 46, was arrested Aug. 8 on the misdemeanor charge after police said he grabbed his wife’s wrists, causing cuts and redness to her arm.
He was taken into custody and held for about a month on that charge and an immigration hold.
Macedo-Hernandez’s defense lawyers argued that their client should be released pursuant to the Trust Act and furthermore has the right under the Illinois Constitution and the U.S. Constitution to post bail and immediately be released.
The Trust Act prohibits local and state police from searching, arresting or detaining a person simply because of their immigration status.
McHenry County State’s Attorney Patrick Kenneally was prepared to argue that the Trust Act is unconstitutional because it is pre-empted by federal immigration law, but didn’t get the chance to on Tuesday because Judge Michael Feetterer declined to proceed further.
“It violates the Separation of Powers, the legislative branch cannot dictate to the executive branch, of which the sheriff is a member, what laws to enforce and it violates the prohibition on special legislation in that it only applies to a small number of people being held on civil detainers,” Kenneally said in his motion.
He also claims Macedo-Hernandez is not being held solely on his immigration status because the Department of Justice requested he be held pursuant to a contract between the McHenry County Jail and the Department of Justice, the organization that oversees Immigration and Customs Enforcement.
The jail has had an agreement with ICE since 2014 that allows it to house federal detainees in the jail for between $85 and $95 a day for each inmate, and a transportation rate from $34 to $48 an hour, according to court documents.
The McHenry County Jail housed 280 daily ICE inmates in 2011, but that number dropped to 179 in 2013, according to the McHenry County Sheriff’s Office website. Sheriff Bill Prim took office in 2014, and the jail housed 192 inmates in early 2016. Prim said in a 2016 news release that he was encouraged to see the “downward slide” halted.
Seventeen-year-old Melissa Macedo spent hours on Friday attempting to post bail for her father. Macedo-Hernandez has been in the U.S. for at least two decades. Before his arrest, Macedo said her father worked as a landscaper.
Macedo waited eight hours to post the $500 bail for her father, although a correctional officer told her that her father would not be released. Macedo-Hernandez was informed later that evening, according to his defense lawyer, that he was going to be transferred and ICE officials would pick him up no later than Tuesday.
Defense lawyer George Kililis filed multiple motions to ensure his client’s case was heard before Macedo-Hernandez was taken into ICE custody.
When lawyers arrived Tuesday morning, they learned Macedo-Hernandez already had been taken into ICE custody. Kenneally said he was unaware Macedo-Hernandez had been taken by ICE and asked Prim to get him back, per a court order for the scheduled hearing.
Prim has not responded to several requests for further comment on the case, but he said Friday that he was “moving slowly and cautiously with public safety as (their) foremost consideration, consistent with constitutional responsibilities.”
Macedo-Hernandez was brought back to the jail Tuesday afternoon and appeared in court, sitting in orange McHenry County jail garb just ahead of his children, Melissa Macedo and Savas Macedo.
Several community members also were present at the hearing Tuesday.
Kenneally said he believed the court should not hold a hearing at all, arguing that the defense’s emergency motion is an issue to be taken up in civil court as opposed to criminal court. He said that because Macedo-Hernandez posted bond, he no longer is being held on the criminal charge, but rather because of his immigration status, and therefore the judge does not have authority to release him based on the fact that he now is in federal custody.
“Federal immigration law regarding administrative detainers, immigration warrants and removal are civil, not criminal matters,” Kenneally said in his motion.
He also argued that defense lawyers did not properly notice his office, which puts himself and other prosecutors “at a serious disadvantage” in trying to argue the case.
Defense lawyer Jeannie Ridings said the Trust Act is very clear and that’s the law the judge has jurisdiction over, meaning he has the right to make a decision as to whether Macedo-Hernandez should be released because the court sets the bond and any necessary conditions.
She said she was hoping to have the motion heard sooner. She and two legal partners, Beth Vonau and Kililis, tried to argue the case over the weekend, but they were turned away after sheriff’s deputies refused to accept the paperwork or alert the on-call judge, she said.
Feetterer said that if Macedo-Hernandez posted bond and the sheriff, because of his interpretation of federal law, said he cannot be released, then the matter lies between the defendant and the sheriff’s office.
Kililis said they would look into appellate avenues or take the issue up in civil court.
It was not immediately clear what would happen to Macedo-Hernandez now that he is in federal custody. The ICE website listed Macedo-Hernandez as being in ICE custody at the McHenry County Jail.